High Court of Ireland Decisions

1. In this application, leave for which was obtained on the 10th April, 2000, Mr. B., the above named Applicant, seeks from this Court firstly, an Order of Certiorari quashing a decision by the Respondent Minister to make in respect of him a deportation order dated the 6th March, 2000 and secondly, an Order granting the said Applicant leave to remain and work in this jurisdiction. The grounds upon which this application has been moved and the background facts and circumstances thereof can be stated briefly as follows:-

(a) Following an application therefor, Mr. B. was notified on the 30th October, 1998 that he was unsuccessful in attempting to obtain refugee status within this country. The reason advanced was that he had failed to demonstrate a well founded fear of persecution for a Convention reason. He was advised of his entitlement to appeal.

(b) Having exercised this right, the Appeals Authority, Mr. Peter Finlay SC, on the 1st May, 1999 concluded and recommended that the appeal should be refused. On the 4th day of that month Mr. Richard Fennessy, from the Asylum Division of the Respondent Ministry, wrote to the Applicant and so informed him of the recommendation made by the Appeals Authority. He then continued, “ As the officer authorised by the Minister, I have considered the recommendation of the Appeals Authority and have decided to uphold the original decision and refuse your appeal .” In that letter Mr. B. was invited, if he so wished, to make a written application to the Minister to establish an entitlement as to why he should be allowed to remain in this State.

(c) On the 8th and 14th May, Mr. James Watters and Company, Solicitors, on behalf of the Applicant, made such written representations and in support of his application to remain in this country on humanitarian grounds, a number of references from third parties were attached by way of enclosures.

(d) On the 14th January, 2000, the Immigration Division of the Respondent wrote to the Applicant and informed him of the Minister’s proposal to consider his deportation from this Country under Section 3 of the Immigration Act, 1999. Having referred to the previous representations made on his behalf, Mr. B. was offered a further opportunity to update those representations and to add further information, if available. A period of 15 working days was specified for the receipt of such representations. On the 1st February, accepted as being within time, Mr. Watters again made further representations on behalf of his client.

(e) On the 6th March, the Minister made a Deportation Order in respect of the Applicant, the last paragraph of which read as follows:-

“Now, I, John O’Donoghue, Minister for Justice, Equality and Law Reform, in exercise of the powers conferred on me by the said subsection (1) of Section 3, hereby require you the said R. B. to leave the State within the period ending on the date specified in the notice served on or given to you under subsection (3)(b)(ii) of the said Section 3, pursuant to subsection (9)(a) of the said Section 3, and to remain thereafter out of the State” , and lastly

(f) By letter dated the 24th March, 2000 the Applicant was notified in writing of the Minister’s decision and of the reasons therefor, which said letter in its relevant sections reads as follows:-

“In reaching this decision the Minister has satisfied himself that the provisions of Section 5 (prohibition of refoulement) of the Refugee Act are complied with in your case.

2. The relevant statutory provisions are as follows:-

(a) The Respondent Minister has power to make a deportation order in respect of an non-national, inter alia , where that person’s application for refugee status has been refused (Section 3(1) and (2)(f) of the 1999 Act),

(b) If and when the Minister proposes to make such an order, he must notify the person concerned of his proposals and of the reasons therefor (Section 3(3)(a)).

(c) Such a person may, within 15 working days make representations in writing to the Minister and the Minister shall,

(i) before deciding the issue, take into account and consider such representations (Section 3(3)(b)(i)), and

(ii) notify the person in writing of his decision and of the reasons therefor (Section 3(3)(b)(ii)),

(d) In determining whether or not to make such an order, he, the Minister, must also take into account the factors listed in and identified at subsection (6) of Section 3 which factors include the age of the person, how long that person has been in the State, that person’s personal circumstances, his employment prospects and record, his character and conduct. In addition he must also have regard to humanitarian considerations as well as to the common good, national security and public policy; finally

(e) Any Deportation Order made, must be in the prescribed form, that is in accordance with SI 319/1999 entitled Immigration Act 1999 (Deportation) Regulations 1999, or in a form in the like effect. Section 3(7)

3. This case was heard at the same time as the Salcianu’s case, in respect of which I have previously given judgment. A great number of the points raised in these proceedings were also raised in and debated in the Salcianu case. For example, the issues as to whether or not the Minister failed to consider and weigh appropriately the representations made to him, whether he is estopped from relying on the “ maintenance of the integrity of the asylum and immigration system s”, either because these were manifestly inadequate or because this is not permitted under Section 3(6) of the 1999 Act, whether the reasons specified in the letter dated the 24th March, 2000 for the making of the Deportation Order were in law adequate - these were all matters and issues dealt within and covered by the judgment in Salcianu. I would therefore, adopt and apply the relevant part or parts of that judgment as representing my views on these matters. In consequence I would reject the submissions, though ably and forcefully made on behalf of the Applicant, in respect of these issues.

4. Mr. B., also alleged, in his Statement grounding these proceedings, that at the time when his application for refugee status was being considered, there was not in existence any proper system with the result that the processing of his claim did not meet the minimum conditions required to satisfy the principles of natural justice. This ground did not in fact become a live issue during the currency of the case but in any event the procedures available as a result of what is commonly referred to as the Hope Hanlon letter, as amended, were in my view quite sufficient to meet the requirements of natural justice. These said procedures have formed the subject matter of several judgments of this Court during the past decade and it is thus unnecessary to detail such procedures for further comment save to note, that in upholding the due rights of Applicants, the Courts have insisted that the Respondent Minister was bound by and had to comply with the terms of the aforesaid procedures.

5. The Applicant also seeks an order granting him liberty to remain and work in Ireland and does so on the basis, inter alia , of his stay within the State, of his good character, of his employment prospects and of his involvement with voluntary groups. It is said that given his circumstances, it would be unreasonable, irrational and contrary to common sense to refuse to permit him to remain in this Country on humanitarian grounds. In fairness to the Applicant, this issue, whilst contained in the documentation did not as such form part of any principle submission made on his behalf to this Court. Even if it had however, I would reject it. It seems to me that when a person enters this Country with the status of the Applicant, such a person has no right to remain save for an entitlement to process an asylum application. That being so, he must be taken to understand, know and be aware of the potentially temporary nature of his stay within this State. He must be taken to realise that if ultimately unsuccessful in his application for refugee status and also unsuccessful in any application to remain on humanitarian grounds, then he has no right to be within this jurisdiction. Consequently, it seems to me that his stay until these matters have been determined must be viewed and treated accordingly. Therefore, the fact that such a person has made attachments in this Country or that such a person could unquestionably obtain employment, if permitted to do so, are matters which the Minister must consider under Section 3(6) when dealing with an application to remain on humanitarian grounds but are not matters either individually or collectively which this Court could find determinative in deciding the legality of an Applicant’s presence in this Country. It therefore follows in my opinion that this could not be an independent ground for any relief to issue from this Court.

6. As mentioned above, this case was heard at the same time as the Salcianu’s case with both applications having much in common. In one crucial respect however there is a difference of substance between them. It will be recalled that by letter dated the 4th May, 1999 Mr. B. was informed that his appeal against a refusal to grant him refugee status had been rejected. In response to that letter, representations were made to the Minister on his behalf by letters dated the 8th and the 14th May, both signed by Mr. Watters, Solicitor. Apart from acknowledging the receipt of such representations the Department’s next intervention occurred some six months later, when by letter dated the 14th January, 2000, the Immigration Division indicated that the Minister proposed to consider the Applicant’s deportation under Section 3 of the Immigration Act, 1999, and afforded him, if he so wished a further opportunity to make representations within 15 working days. That invitation was acted upon in that on the 1st February, Mr. Waters made further submissions “in accordance with Section 3 of the Immigration Act, 1999” . The application was then continued with and processed and as stated, concluded with the making of the Deportation Order of the 6th March and the letter of notification thereof some three weeks later.

7. The Immigration Act, 1999 obtained the force of law for the first time on the 7th July of that year. It contained no transitional provisions and thus was silent as to how a pending application for leave to remain on humanitarian grounds should be dealt with. As is evident from the relevant dates, whilst Mr. B.’s application was made prior to July of that year, it was not finally processed until March, 2000 with the Minister relying upon Section 3 of the 1999 Act to make, as affecting the Applicant, the Deportation Order which is impugned in these proceedings. An issue thus arises as to whether or not Section 3(3)(a) of the 1999 Act has been complied with and if not, what are the consequences of its non observance.

8. A similar issue arose in, and in fact distinguished the case of B from the cases of P and L in these three cases which were heard together. See the Judgment of the High Court and Supreme Court given respectively on the 2nd January 2001 and 14th July 2001. For all practical purposes the dates and the contents of the relevant letters, correspondence and notices in the case of Mr. B were identical to those existing in the present case. In his judgment, when dealing with this aspect of B’s case, Mr. Justice Smyth concluded, that thought the documentation which was created post July, 1999 established a linkage with correspondence which existing prior to the 7th day of the month, and thought the final representations received were expressly stated to be in accordance with Section 3 of the Act, as is the case here, nonetheless he was satisfied that the Minister had to comply with the

requirements of Section 3(3)(a) which, in the circumstances he found had not been the case and accordingly, given the failure to observe the mandatory provisions of this subsection, everything which flowed or followed thereafter suffered from this infirmity and resulted, in that case, in B obtaining not only leave to apply for but also on the application itself, (both being heard at the same time) an Order of Certiorari. The learned Trial Judge held that no reason for the proposal to make a Deportation Order had been given pursuant to Section 3(3)(a) of the Immigration Act, 1999. The last letter prior to the coming into effect of the Act was dated the 29th March, 1999. It was naturally not written in the terms of an Act which had yet to come into force, but it did invite the making of representations as to why the Applicant should not be deported. On the 9th April, still prior to the coming into effect of the Act, this Applicant’s Solicitor made such representations and enclosed a medical certificate indicating that his client was suffering from diabetes. In the revelant letter after the Act was passed, namely that dated the 20th January 2000, it was simply stated that the Minister “proposes to consider your clients deportation under the power given to him by Section 3 ...”. As this did not specify the reasons for such a proposal, the court issued an Order of Certiorari but did so only on that basis.

9. In the instant case I am equally satisfied that neither the letter of the 4th May, 1999 (corresponding to the letter of the 29th March 1999 in B’s case) or the letter of the 14th January, 2000 (corresponding to the letter of 20th of January 2000 again in B’s case) gave the reasons why the Minister, as of the latter date was proposing to make a Deportation Order in respect of the Applicant and accordingly, the requirements of Section 3(3)(a) have not been complied with. As to the consequences which follow I would respectfully agree with the views of the learned Trial Judge, Mr. Justice Smyth, who held that compliance with such provisions was essential and that, though all subsequent steps were carried out meticulously in accordance with Section 3(3)(b), nevertheless the preceding breach invalidated all such steps, which included the Deportation Order itself, and accordingly such Order could not stand.

10. It therefore follows that on this ground I would also set aside the Deportation Order dated the 6th day of March 2000.

11. By reason of this conclusion it is unnecessary to consider further any of the other submissions made in this case.